Monday, November 28, 2022

Your website and copyright: 2 tips on building a website

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Diplomat Magazine
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DIPLOMAT MAGAZINE “For diplomats, by diplomats” Reaching out the world from the European Union First diplomatic publication based in The Netherlands. Founded by members of the diplomatic corps on June 19th, 2013. "Diplomat Magazine is inspiring diplomats, civil servants and academics to contribute to a free flow of ideas through an extremely rich diplomatic life, full of exclusive events and cultural exchanges, as well as by exposing profound ideas and political debates in our printed and online editions." Dr. Mayelinne De Lara, Publisher

Who owns your website? You? After all, you commissioned it. Or is it owned by the website builder? Use our tips to ensure that you own the copyright of your website.

When you have a website developed, it is important to get things right. Otherwise disagreements may arise later on. For example, because you as a client have changed the design of the website without seeking permission from the website builder. Or because you discover that your website builder also applied the design or functionality of your website when building a website for a third party. In both situations, in order to assess who has acted correctly, it must first be established whether there is copyright on the website and secondly, to whom that copyright belongs.

When does copyright protection apply?

The design of a website is copyrighted if there is a certain degree of creativity that deserves protection. Under Dutch case law, sufficient creativity exists if the website has its “own, original character” and a “personal stamp of the creator”. In short: elements that are so trivial that they cannot be identified as creative work of any kind are not protected by copyright.

For a website created using an off-the-shelf WordPress theme in which only some colours have been changed, copyright protection is harder to assume than for a website coded from scratch. For a website from scratch, the website builder is likely to have made the necessary artistic choices, so that a degree of creativity can be assumed.

Tips

Here are two tips to avoid conflicts after website completion.

1. Make arrangements on who holds the copyright after completion of the website

The creator of a website holds the copyright to it. In most cases this will be the website builder – and not you as client. It does not matter that you paid the website builder to build the website; as creator, the copyrights belong to the website builder.

Things are different if you agree that the copyrights to the website will be transferred to you as the client after the completion. This is done via a deed: a written and signed document. It is important to lay down clearly in such a deed what exactly is being transferred. In addition, it is wise to include an indemnity clause in the deed. This prevents that, should the website unexpectedly infringe on the rights of third parties, these third parties can come to you to recover their damages.

Another option is to enter into a licence agreement. In such a case, the copyrights remain with the website builder. But in the licence agreement, you agree with the builder that you may use the website, and under what conditions. In any case, it is important to agree in the licence agreement on the period during which the website design may be used and that the website design may be modified by the user.

2. Do not just post texts and images on the website

Be careful not to just post texts and images on the website. After all, these too may be copyrighted. For example, the copywriter you hire to provide the texts for the website has copyrights on these texts. It is therefore important to also make arrangements with this copywriter as discussed above.

Copyright also applies to images that can be found on the internet. That means these images, in principle, may not just be used without the photographer’s permission. Or sometimes there are certain conditions under which an image may be used. For example that the name of the photographer has to be mentioned any time the image is used. Or that the image may not be used for commercial purposes. Even the “free” images on Wikipedia are often not completely free. So pay close attention under which licence images have been released.

IP/ICT lawyer

Do you need help making arrangements with the parties involved in your website? Or do you want to know how to deal with a copycat? Please contact info@russell.nl Tel.:
+31 (0)20 – 301 55 55

About the authors:

Reinier Russell

Managing Partner

Reinier advises national and international companies reinier.russell@russell.nl+31 20 301 55 55

__________________________________________

Laura Schalk

Lawyer

Laura is an expert in corporate law and litigation laura.schalk@russell.nl+31 20 301 55 55

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